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In re Ohio Execution Protocol Litigation

United States District Court, S.D. Ohio, Eastern Division, Columbus

May 8, 2018

In re OHIO EXECUTION PROTOCOL LITIGATION, This Report relates to all Plaintiffs Except Raymond Tibbetts and Robert Van Hook

          Edmund A. Sargus, Jr. Chief Judge

          SUPPLEMENTAL REPORT AND RECOMMENDATIONS ON DEFENDANTS' MOTION TO DISMISS THE FOURTH AMENDED OMNIBUS COMPLAINT

          MICHAEL R. MERZ UNITED STATES MAGISTRATE JUDGE

         This capital § 1983 case is before the Court on Objections by Defendants (ECF No. 1450) and by Plaintiffs (ECF No. 1459) to the Magistrate Judge's Report and Recommendations (“Report, ” ECF No. 1429) recommending a disposition of Defendants' Motion to Dismiss the Fourth Amended Omnibus Complaint (ECF No. 1379). Plaintiffs have responded to Defendants' Objections (ECF No. 1457), Defendants have responded to Plaintiffs' Objections (ECF No. 1562), and Chief Judge Sargus has recommitted the matter for reconsideration in light of the Objections (ECF No. 1452).

         The parties do not object to the Report's statement of the standard of review for motions to dismiss under either Fed.R.Civ.P. 12(b)(1) or 12(b)(6), although at several points Plaintiffs' object to how the Twombly/Iqbal standard is applied. The parties also correctly state that review of a Magistrate Judge's recommendation on a dispositive motion, such as the instant Motion to Dismiss, is for clear error as to facts and de novo as to the law.

         Defendants' Objections

         Third Cause of Action:[1] Access to Court

         In their Third Cause of Action, Plaintiffs complain of limitations on their ability to consult with counsel and counsel's ability to communicate with the courts or other relevant authorities, particularly the Governor, during the course of an execution (Fourth Amended Omnibus Complaint (“4AOC”), ECF No. 1252, PageID 45728-35, ¶¶ 1295-1328). Defendants sought dismissal on the basis of Judge Frost's decision in Cooey v. Strickland, 2011 U.S. Dist. LEXIS 8336, *39 (S.D. Ohio Jan. 29, 2011). The Report concluded that Judge Frost's decision was based on the then-existing record on access and that telephone access had been changed since then, but without development of an adequate record as yet. (ECF No. 1429, PageID 55227.)

         In their Objections, Defendants again rely on Judge Frost's January 2011 decision cited above and the Magistrate Judge's Decision of November 14, 2017, denying leave to amend to add a new access claim to the claims of then-Plaintiff Alva Campbell, who was set to be executed the next day (ECF No. 1375). The proposed amendment would have addressed changes in access implemented after the Gary Otte execution, but before the attempted Campbell execution. The Magistrate Judge denied the amendment because the access being provided after the changes was still more than the access Judge Frost found to be constitutional. Defendants rely on the logic of this decision.

         As Plaintiffs point out in response, Judge Frost's January 2011 summary judgment decision on the basis of the record then before him is not inconsistent with his prior decision that Plaintiffs' access claims did state a claim upon which relief could be granted, that is, that they survived the Rule 12(b)(6) test even if ultimately they could not pass the Rule 56 test. Plaintiffs also note that the Magistrate Judge's November 14, 2017, decision was, as it states on its face, issued in the haste necessary when a motion is made within twenty-four hours of a scheduled execution.

         It is therefore again respectfully recommended that the Motion to Dismiss be denied as to the Third Cause of Action.

         Fourth Cause of Action: Equal Protection Violations

         In their Fourth Cause of Action, Plaintiffs allege that they have been or will be treated differently from other similarly situated individuals in violation of the Equal Protection Clause of the Fourteenth Amendment (4AOC, ECF No. 1252, PageID 45735-78, ¶¶ 1329-1495). This Cause of Action comprises eighteen sub-claims, set out verbatim in the Report (ECF No. 1429, PageID 55228-30) which recommends dismissing all of the sub-claims except sub-claims A.1, A.10, B.1, and B.8.

         Sub-claim A.1.

         The Report concluded that while Sub-claim A.1 does not currently plead a threatened deviation from the Execution Protocol, it pleads “an equal protection theory which has been accepted by this Court in the past and resulted in the issuance of preliminary injunctive relief, to wit, that deviations from at least some provisions of the Execution Protocol burden an inmate's right to be free of cruel and unusual punishment.” (Report, ECF No. 1429, PageID 55244.) Defendants object that the pleading is too speculative and the Court has not found an equal protection violation on this theory since 2012 (Objections, ECF No. 1450, PageID 55398). Plaintiffs respond that they obtained relief on this theory in this case in the past (Response, ECF No. 1457, PageID 55427-31).

         The current standard for evaluating whether a complaint states a claim turns on plausibility. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Doe v. Miami University, 882 F.3d 579 (6th Cir. 2018), quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), in turn quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Given that some Plaintiffs have obtained injunctive relief from this Court under this theory but on the facts that existed at the time of their imminent executions, it is not implausible that similar circumstances might be presented with future executions. In this sense, plausibility is about possible future facts. The Court could, therefore, dismiss Sub-claim A-1 for lack of present facts and then allow amendment if the facts change. The Magistrate Judge believes the better course is to leave Sub-claim A-1 stand as pleading an appropriate legal theory without appearing to repudiate it by dismissal at this stage.

         Sub-claim A-10.

         As to this sub-claim, the Report reads:

In their tenth Equal Protection [burden on fundamental rights] sub-claim, Plaintiffs contend that the removal of required drug concentrations from the Execution Protocol violates their Equal Protection rights.
Although that amendment to the Protocol precedes the last three preliminary injunction hearings in this case, the Court has not yet heard any evidence in support of this claim. It is not unconstitutional to amend the Execution Protocol, but it is at least conceivable that this particular amendment might be shown to have reduced the safeguards of Plaintiffs' Eighth Amendment rights. The Motion to Dismiss sub-claim 10 should be denied.

(Report, ECF No. 1429, PageID 55251.)

         Defendants object essentially on the same basis as they objected on sub-claim A-1, to wit, that the sub-claim is “premised on [a] mere possibility of speculative intentional action and injury.” (ECF No. 1450, PageID 55399.) Not so. Removal of the required drug concentrations from the Execution Protocol is undoubtedly an intentional action by Defendants: the Protocol did not amend itself. The question is the effect of that amendment. Defendants emphasize what the Report noted, to wit, that there has been no evidence on this claim presented in the three preliminary injunction hearings held since the amendment. But a preliminary injunction hearing is not a trial on all issues. If at the time of summary judgment practice the Plaintiffs have no evidence to support this claim, it will be time enough for dismissal.

         Sub-claim B-1.

         This is the first of eight equal protection sub- claims grounded in the class-of-one theory. The Report found that, as of yet, Defendants have not made or threatened any arbitrary classification of any one of the Plaintiffs that would support relief on that theory (ECF No. 1429, PageID 55253). Nonetheless, the Magistrate Judge recommended keeping this sub-claim in the Fourth Amended Omnibus Complaint on the same theory as sub-claim A-1 with the caveat “that any particular Plaintiff will need to amend or supplement his individual complaint if he is threatened with particular deviations from the Execution Protocol at the time his execution becomes imminent.” Id. at PageID 55254.

         Defendants object that Plaintiffs have not in fact pleaded any actionable arbitrary classification. While that is true, it is the law of the case and consistent with equal protection theory generally that a class-of-one claim is cognizable in a § 1983 case. Plaintiffs' position on this sub-claim is less tenable than their position on sub-claim A-1 because there has been relief granted on that theory (“deviation from the Protocol”) in the past, whereas no relief has been granted in this case on the class-of-one theory. Nevertheless, the Magistrate Judge adheres to his prior recommendation because the theory is sound if facts are eventually pleaded to support such a claim for relief.

         Sub-claim B-8.

         The Report recommended allowing sub-claim B-8 (removal of required drug concentrations) to stand on the same basis as sub-claim A-10 (ECF No. 1429, PageID 55255). Here again there has been no evidence yet presented to suggest that the removal of the concentrations was arbitrarily directed at any one Plaintiff and the generality of the amendment to remove the concentrations cuts strongly against that claim. Therefore, sub-claim B-8 is less plausible than sub-claim A-10. However, there is no prejudice to Defendants in allowing this claim to be tested in summary judgment rather than on a motion to dismiss.

         Plaintiffs' Objections [2]

         Second Cause of Action: Deprivation of State-Created Rights Without Due Process

         In their Second Cause of Action Plaintiffs assert they have state-created life, liberty, and property interests created by the Ohio execution statute (Ohio Revised Code § 2949.22(A)) and the Ohio Execution Protocol (ODRC Policy 01-COM-11) which are protected by the Fourteenth Amendment Due Process Clause. (4AOC, ECF No. 1252, PageID 45722-28, ¶¶ 1270-94.)

         The Report (ECF No. 1429, PageID 55226) recommended dismissing the Second Cause of Action on the basis of Cooey (Biros) v. Strickland, 589 F.3d 210, 234 (6th Cir. 2009), followed by Judge Frost in Cooey (Henderson) v. Strickland, 2010 U.S. Dist. LEXIS 81841 (S.D. Ohio Aug. 12, 2010), as well as the rationale given by the undersigned in In re: Ohio Execution Protocol Litig. (Tibbetts & Otte), 2017 U.S. Dist. LEXIS 107468 (S.D. Ohio July 12, 2017), and In re: Ohio Execution Protocol Litig. (Campbell), 2017 WL 3479589 (S.D. Ohio Aug. 14, 2017).

         Plaintiffs concede Cooey (Biros) is binding precedent as to the execution statute, but object to preserve their right to appeal because they believe it was wrongly decided (Objections, ECF No. 1459, PageID 55448).

         As to Plaintiffs' claim of Due Process rights protected by the Execution Protocol, the Magistrate Judge also relied on Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005), to hold that the right to a “humane and dignified execution” was not a state-created property right protected by the Fourteenth Amendment because it had no “ascertainable monetary value.” Plaintiffs object that this “ascertainable monetary value” criterion for a state-created property interest is just a “passing reference, ” and not a “holding.” (Objections, ECF No. 1459, PageID 55449).

         In Castle Rock, the Supreme Court granted certiorari to review a Tenth Circuit decision which had (1) found a mother had a state-created property interest in the enforcement of a restraining order against the father of her children which (2) was protected by the Due Process Clause and therefore actionable under 42 U.S.C. § 1983. Justice Scalia's opinion makes clear that only a property interest, not a life or liberty interest, was in issue. 545 U.S. at 756. The Court held that the provisions of Colorado law relied on by the plaintiff did not “truly [make] enforcement of restraining orders mandatory” because police officer discretion often coexists with statutory language that is apparently mandatory. E.g. by use of the word “shall”. Id. at 760.

         Apart from plaintiff's lack of entitlement to enforcement, the Court also held that such an entitlement, if it existed, would not be a property interest:

Even if we were to think otherwise concerning the creation of an entitlement by Colorado, it is by no means clear that an individual entitlement to enforcement of a restraining order could constitute a "property" interest for purposes of the Due Process Clause. Such a right would not, of course, resemble any traditional conception of property. Although that alone does not disqualify it from due process protection, as [Board of Regents of State Colleges v.] Roth, [408 U.S. 565 (1972)] and its progeny show, the right to have a restraining order enforced does not "have some ascertainable monetary value, " as even our "Roth-type property-as-entitlement" cases have implicitly required. Merrill, The Landscape of Constitutional Property, 86 Va.L.Rev. 885, 964 (2000). Perhaps most radically, the alleged property interest here arises incidentally, not out of some new species of government benefit or service, but out of a function that government actors have always performed--to wit, arresting people who they have probable cause to believe have committed a criminal offense.

Id. at 766-67.

         To this judicial officer, the language in the quoted paragraph reads like an alternative holding, and not “dictum” or a “passing reference.” Having argued that the Magistrate Judge read Castle Rock too broadly, Plaintiffs then assert two ways in which they say Castle Rock supports their position. First, they say, the Supreme Court found that the benefit at issue there - enforcement of a restraining order - was not a property interest because it was subject to police officer discretion. Here, however, the obligation to perform executions in a “professional, humane, sensitive, and dignified” manner is made mandatory by the use of the word “shall” in the Execution Protocol.[3] But the same was true of the statute at issue in Castle Rock and the Supreme Court found that was not controlling. 545 U.S. at 761. As Defendants note, the Ohio courts have held that the use of “shall” in prison regulations does not confer rights on inmates. State ex rel. Larkins v. Wilkinson, 79 Ohio St.3d 477, 479 (1997); State ex rel. Shepherd v. Croft, 2010-Ohio-258 (10th Dist. Jan. 28, 2010).

         Second, Plaintiffs argue that in Castle Rock “the alleged interest was not a direct benefit to the individual but rather an indirect benefit arising out of governmental action directed at a third party.” (Objections, ECF No. 1459, PageID 55450.) Here, they say, the requirement of conducting an execution in a professional, humane, sensitive, and dignified manner “has only one direct beneficiary: the condemned prisoner himself.” Id. at PageID 55450-51. Not so. All persons involved with an execution benefit from having it performed in the described manner. Just as there is a benefit to the general public in having the law enforced as in the Castle Rock situation, so to there is a benefit to the public in having executions performed in a professional, humane, sensitive, and dignified manner.

         Plaintiffs object that the Magistrate Judge made a distinction between “execution processes” and the execution itself. The Magistrate Judge is unaware of having suggested such a distinction.

         Having reconsidered the matter in light of the Objections, the Magistrate Judge again concludes the Second Cause of Action should be dismissed for failure to state a claim upon which relief can be granted under 42 U.S.C. § 1983.

         Fourth Cause of Action: Equal Protection Violations

         In their Fourth Cause of Action, Plaintiffs claim Defendants have violated or will violate their Fourteenth Amendment right to equal protection of the laws in eighteen different ways, pleaded in eighteen sub-claims. Plaintiffs make ten claims that their fundamental rights under the Eighth Amendment are being or will be burdened (Claims A.1 through A.10) and eight class-of-one claims (Claims B.1 through B.8). The Report's failure to recommend dismissal of four of those sub-claims is dealt with above under Defendants' Objections; the remainder are dealt with here.

         Plaintiffs' General Objections to the Report's Equal Protection Analysis

         The Report contains a lengthy section analyzing the equal protection law of this case, incorporating the parallel analysis in In re: Ohio Execution Protocol Litig. (Campbell & Tibbetts), 2017 U.S. Dist. LEXIS 182406, 2017 WL 5020138 (S.D. Ohio Nov. 3, 2017) (ECF No. 1429, PageID 55232-42). Although Campbell and Tibbetts appealed, they raised no argument about this Court's denial of their equal protection claims, and the Sixth Circuit affirmed this Court's decision. In re: Ohio Execution Protocol Litig. (Campbell & Tibbetts), 881 F.3d 447 (6th Cir. 2018). The Report concluded: “[t]hus this Court's equal protection analysis in Campbell & Tibbetts, supra, has now become part of the law of this case without disturbance by the Sixth Circuit.” (ECF No. 1429, PageID 55241.)

         Plaintiffs' Objections to this analysis comprise fifteen pages of their Objections (ECF No. 1459, PageID 55454-68). Of their failure to appeal from the dismissal of these claims in Campbell & Tibbetts, they say nothing.

         Having considered these general objections, the Magistrate Judge remains persuaded that rulings on the instant Motion should be

consistent with Judge Frost's decisions in Wiles, Hartman, and Phillips, to wit, (1) Eighth Amendment and Equal Protection analyses are analytically distinct; (2) intentional state action in connection with an execution which burdens an inmate's fundamental Eighth Amendment right by increasing the risk that he will suffer severe pain and needless suffering is actionable under the Equal Protection Clause but (3) not every “deviation” from the Execution Protocol increases that risk.
Therefore, to prove an Equal Protection violation, Plaintiffs must show an intentional state action (action properly attributable to the State under Monell [v. New York City Dept. of Social Services, 436 U.S. 658 (1978), ] which treats one death row inmate disparately from others and burdens that inmate's Eighth Amendment right by increasing the risk he will suffer severe pain and needless suffering.

In re: Ohio Execution Protocol Litig. (Campbell & Tibbetts), 2017 WL 5020138 at *27 (S.D. Ohio Nov. 3, 2017).

         As Plaintiffs have amply proven, an almost endless stream of words can be put on paper arguing the content of the law of this case as garnered from prior opinions. However, discerning the law of the case is only part of our duty. Judge Frost always reminded the parties that decisions on preliminary injunction motions were not final. Ultimately we must apply our best present understanding what the Equal Protection Clause requires. That said, the Magistrate Judge adheres to the analysis of equal protection law in general given in the Report.

         Sub-claim A.2: Deviations from Ohio's Execution Statute

         In their second burden-on-fundamental-rights sub-claim, Plaintiffs assert that Ohio's expected deviations from its execution statute, Ohio Revised Code § 2949.22(A), will burden their fundamental Eighth Amendment right to be free from cruel and unusual punishment. The Report recommends dismissal of sub-claim A.2 because it attempts to constitutionalize the statute and because it hypothesizes various ways in which Ohio might violate the statute without plausibly alleging facts in support of those claims.

         The Report notes the long-standing principle that “[f]ailure to abide by state law is not itself a constitutional violation.” (ECF No. 1429, PageID 55242, citing Roberts v. City of Troy, 773 F.2d 720 (6th Cir. 1985), and other cases). Plaintiffs offer no objection to that general proposition.

         Based on that principle, the Report concluded the Equal Protection Clause did not constitutionalize Ohio Revised Code § 2949.22(A)'s prescription of a quick and painless execution. Plaintiffs object that “the statute itself implicates Plaintiffs' Eighth Amendment fundamental rights by setting out the requirements for how they are to be executed; accordingly, applying the statute disparately burdens those fundamental rights by removing the protections that are included in the statute to make it Eighth Amendment compliant.” (ECF No. 1459, PageID 55469.) This is nothing more than an argument that the Equal Protection Clause constitutionalizes the Ohio execution statute. But there is no Eighth Amendment right to a painless execution. Glossip v. Gross, 576 U.S.___, 135 S.Ct. 2726, 192 L.Ed.2d 761 (2015); Fears v. Morgan (In re: Ohio Execution Protocol), 860 F.3d 881 (6th Cir. 2017)(en banc).

         The Report concluded ¶¶ 1377 and 1378 did not state a claim

because there is no threat of Defendants “failing to continue application of the lethal injection drug(s) until a Plaintiff is dead” or of “failing to administer a sufficient dosage of the lethal injection drug(s).” That is to say, the Defendants have not expressly threatened either of these courses of conduct, nor have they engaged in these practices in the past so as to have made an implicit threat of repeating them.

(ECF No. 1429, PageID 55245.)

         Plaintiffs' Objections note they alleged the “Defendants failed to administer the required dosages of drugs during the execution of Joseph Clark” and the drugs administered to Dennis McGuire (10 mg.of midazolam and 40 mg of hydromorphone) did not quickly and painlessly cause death (Objections, ECF No. 1459).

         While the Fourth Amended Omnibus Complaint does make these allegations, it is not plausible that they will be repeated. The drug not administered in sufficient dosage in the Clark case was sodium thiopental which is no longer available to be used in executions. A major part of the problem with the Clark execution was the failure to establish and maintain two intravenous lines and Director Mohr has testified he would not permit an execution to proceed in the future without two lines. The protocol involved in the McGuire execution has been abandoned.

         The Fourth Amended Omnibus Complaint is replete with accounts of difficulties with prior executions, both in Ohio and in other states (ECF No. 1252, PageID 45667-45721). This appears to be in support of something like a Murphy's Law argument: if something can go wrong, it will.[4]But Murphy's Law is also not part of the Constitution. An Equal Protection violation requires an intentional act by a state actor; as Judge Frost noted earlier in this case, mistakes will happen and they are not constitutional violations. In re: Ohio Execution Protocol Litigation, 868 F.Supp.2d 625, 626 (S.D. Ohio 2012). For the reasons given, the two cited past failures are not plausibly likely to reoccur. The Plaintiffs' Objections do not quarrel with the Report's conclusion that no state actor has expressly threatened to repeat what occurred in the Clark or McGuire execution. And this Court has not found an equal protection violation since 2012.

         Plaintiffs allege Defendants will not “continue application of the lethal drug(s) until Plaintiff is dead.” (4AOC, ECF No. 1252, PageID 45748, ¶ 1377.) In their Objections, Plaintiffs complain that the Protocol calls for bolus injections of the three execution drugs, instead of “an initial injection followed by a continuous infusion.” (ECF No. 1459, PageID 55470.) This amounts to an argument that the Fourteenth Amendment constitutionalizes Plaintiffs' interpretation of the word “continuous.”

         Sub-claim A.3: Deviations from the Ohio Constitution

         In sub-claim A.3, Plaintiffs speculate that the Ohio Constitution's prohibition on cruel and unusual punishments “may accord greater civil liberties and protections to individuals and groups than its federal counterpart.” (ECF No. 1252, PageID 45749, ¶ 1383.) The Report recommended dismissal because Plaintiffs' Memorandum in Opposition to the Motion to Dismiss did not mention the Ohio Constitution or any case law supporting their argument (ECF No. 1429, PageID 55245-46).

         Plaintiffs object that the Defendants' argument for dismissal of this claim “solely on the bases of Eleventh Amendment sovereign immunity and that the Eighth Amendment, not the Equal Protection Clause, controls the claim.” (Objections, ECF No. 1459, PageID 55472.) Thus the Magistrate Judge is said to have raised the recommended basis for dismissal - insufficient pleading under Twombly/Iqbal -- sua sponte. Id. at PageID 55473.

         The Magistrate Judge agrees the Report on this sub-claim is too cursory.

         Defendants asserted in the Motion that this sub-claim did not state a claim upon which relief could be granted under § 1983 because it raised only a speculative claim under Ohio law (ECF No. 1379, PageID 51940). Upon the authority cited above, the Equal Protection Clause does not constitutionalize Ohio law and therefore the citation of Twombly/Iqbal was appropriate and the lack of sufficient pleading was not raised sua sponte.

         In addition, however, Defendants did assert Eleventh Amendment immunity from liability on this Ohio law claim. As they noted, the Eleventh Amendment does not bar an action for injunctive relief against a state officer for violations of the United States Constitution. Ex parte Young, 209 U.S. 123 (1908); Cory v. White, 457 U.S. 85 (1982); Thomson v. Harmony, 65 F.3d 1314, 1320 (6th Cir. 1995). However, the Amendment does bar an action to enjoin state officials from violating state law. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984); Ernst v. Rising, 427 F.3d 351 (6th Cir. 2005)(en banc); Turker v. Ohio Dep't of Rehab. & Corr., 157 F.3d 453 (6th Cir. 1998). The Sixth Circuit has applied that doctrine in this very case. In re: Ohio Execution Protocol Litig. (Gary Otte), 2017 U.S. App. LEXIS 17436 (6th Cir. Sept. 7, 2017), affirming In re: Ohio Execution Protocol Litig. (Tibbetts & Otte), 2017 U.S. Dist. LEXIS 115583 (S.D. Ohio July 25, 2017).

         The Report noted that the claim was also speculative because Plaintiffs' Memorandum in Opposition lacked any citation to Ohio law holding the Ohio Constitution created greater protection against cruel and unusual punishment. Plaintiffs object, now citing for the first time[5]In re C.P., 131 Ohio St.3d 513 (2012). In that case the Ohio Supreme Court held that Ohio Revised Code § 2152.86, which required lifelong sex offender registration for juveniles convicted of rape, was unconstitutional under both the Eighth Amendment and Article I, § 9 of the Ohio Constitution. Id. at ¶¶ 58, 69. In discussing the Ohio law, Justice Pfeiffer noted that § 9 “provides protection independent of the protection provided by the Eighth Amendment.” Id. at ¶ 59 (emphasis supplied). That finding, of course, shields the judgment in the case from reversal by the United States Supreme Court under 28 U.S.C. § 1257. In re C.P. does not hold that the Ohio cruel and unusual punishment protections are greater than those provided by the Eighth Amendment.

         Upon this additional analysis, the Magistrate Judge again recommends Sub-claim A.3 be dismissed.

         Sub-clai ...


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